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  • In Re: Smith V., 4th Cir. (2000)

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    The United States Court of Appeals for the Fourth Circuit denied David Elijah Smith's petition for a writ of mandamus. Smith sought to compel the district court to rule on an issue he had previously raised in a motion under 28 U.S.C. § 2255. The court determined that mandamus is a drastic remedy only appropriate in extraordinary circumstances, which Smith had not demonstrated, as he had not shown he lacked other adequate means of relief or a clear and indisputable right to the relief sought. Therefore, the court denied Smith's petition.

    Original Description:

    Filed: 2000-09-22 Precedential Status: Non-Precedential Docket: 00-6979

    Original Title

    In Re: Smith v., 4th Cir. (2000)

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    The United States Court of Appeals for the Fourth Circuit denied David Elijah Smith's petition for a writ of mandamus. Smith sought to compel the district court to rule on an issue he had previously raised in a motion under 28 U.S.C. § 2255. The court determined that mandamus is a drastic remedy only appropriate in extraordinary circumstances, which Smith had not demonstrated, as he had not shown he lacked other adequate means of relief or a clear and indisputable right to the relief sought. Therefore, the court denied Smith's petition.

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    In Re: Smith V., 4th Cir. (2000)

    Uploaded by

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    The United States Court of Appeals for the Fourth Circuit denied David Elijah Smith's petition for a writ of mandamus. Smith sought to compel the district court to rule on an issue he had previously raised in a motion under 28 U.S.C. § 2255. The court determined that mandamus is a drastic remedy only appropriate in extraordinary circumstances, which Smith had not demonstrated, as he had not shown he lacked other adequate means of relief or a clear and indisputable right to the relief sought. Therefore, the court denied Smith's petition.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 00-6979

    In Re: DAVID ELIJAH SMITH,


    Petitioner.

    On Petition for Writ of Mandamus.


    (CR-93-16, CA-98-157-3-BO)

    Submitted:

    September 8, 2000

    Decided:

    September 22, 2000

    Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

    Petition denied by unpublished per curiam opinion.


    David Elijah Smith, Petitioner Pro Se.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    David Elijah Smith has filed a petition for writ of mandamus
    seeking this court to compel the district court to provide him with
    a ruling on the merits regarding an issue he previously raised in
    a motion brought pursuant to 28 U.S.C.A. 2255 (West Supp. 2000).
    Mandamus is a drastic remedy, only to be granted in extraordinary
    circumstances.

    See In re Beard, 811 F.2d 818, 826 (4th Cir. 1987)

    (citing Kerr v. United States Dist. Court, 426 U.S. 394 (1976)).
    The party seeking mandamus relief has the heavy burden of showing
    that he has no other adequate avenues of relief and that his right
    to the relief sought is "clear and indisputable."

    Mallard v.

    United States Dist. Court, 490 U.S. 296, 309 (1989) (quoting
    Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384 (1953));
    Beard, 811 F.2d at 826.

    Courts are extremely reluctant to grant a

    writ of mandamus, and the decision is within the discretion of the


    court addressing the application for the writ. See Beard, 811 F.2d
    at 827 (citations omitted).
    We find that Smith has not met his burden of proof such that
    mandamus is the proper remedy in this situation.

    Mandamus is not

    a substitute for appeal, In re United Steelworkers, 595 F.2d 958,


    960 (4th Cir. 1979), and Smiths right to relief by way of mandamus
    is not clear.

    See Mallard, 490 U.S. at 309; In re First Fed. Sav.

    & Loan Assn, 860 F.2d 135, 138 (4th Cir. 1988).

    Accordingly, we

    grant Smiths motion to proceed in forma pauperis, and we deny

    Smiths request for mandamus.

    We dispense with oral argument be-

    cause the facts and legal contentions are adequately presented in


    the materials before the court and argument would not aid the decisional process.

    PETITION DENIED

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